Welcome Finance - This company needs to be banned.

[Prudence]

Prudence

 

Let us know when (if) you get anything from MKRR. I think you need to wait for thet before proceeding.

 

In the meantime you (and everyone else) might be interested in this - http://www.journalism.co.uk/66/articles/539539.php

 

Thanks very much Steven. If I get a reply/or receive no reply to the CCA request, I shall come back on here for further advice. Yes, looks like good news re PPI! Do you think it would be a good idea to start the ball rolling claiming back missold PPI from Welcome/Direct/Norwich Union (and where do we start?), since it was because they didn't pay out when we needed it that got us into the mess in the first place! ("pre-existing condition"). How much can be claimed? The PPI was included in the full credit amount (before Discontinuance, we had actually paid back about half of the total sum they demanded). Kind regards, Pru

[rach8736]

steven could you shed some light on this hidden commisions thing,or even give me a few links where i can read for myself as to how this could make the agreement unenforceable,

[dx100uk]

search for posts from postggj

or just type in hidden commission in our advanced search [all posts]

 

dx

[steven4064]

steven could you shed some light on this hidden commisions thing,or even give me a few links where i can read for myself as to how this could make the agreement unenforceable,

Look up the case Wilson v Hurstanger on Google. Iin that case, the agreement wasn't void but it gives information that will let you see the reason why Welcome ones are void. Basically, when they sold you the insurance, they were acting as an insurance agent. They can only make a profit in that case if they tell you and you positively agree to it. Welcome of course didn't tell you but hid the commission. That is unlawful and makes the agreement void.

[pt2537]

That is arguable, though, as the agent will be entitled to be paid from somewhere and it is dependant on you paying your agent and then him recieving a back hander

 

Halsburys makes the position very clear, cant upload it however nor can i pm anyone the details

 

but you need to be very careful

 

Also there is a clear distinction between Void and Voidable in contract law

[steven4064]

The underwriting sheet I have shows Welcome paying the insurance company a certain amount and then charging the customer significantly more. There is no indication whatsoever that Welcome have paid themselves a massive profit on the agreement. There is no question that the agent can be paid but surely they must declare it.

 

Then there is the second point that the amount they paid themselves should be part of the cost of credit not part of the loan amount. Thus the loan amount, TCC and APR are all wrong making the agreement unenforceable ubder s61 CCA 1974.

[pt2537]

not always, in the same way, do you tell everyone what you get paid?

 

sales men work on commission basis.

 

In respect of the credit, charge etc, thats all well and good, but, heres a spanner in the works, cos i had a claim where the lender said that "they" funded the commissions and therefore while they showed on the underwriting sheet, they were not paid by the client at all.

 

We could not prove to the contrary.

 

Also, in respect of purchasing the PPI,

 

What if, they arent an agent, and are a supplier of a product? then it matters not what they purchase the product for, but they are entitled to put a mark up on it

 

when Heinz sell their baked beans to tesco, tesco then add their profit to them by increasing the price. Why cant Welcome do the same?

 

The case which explains things clearer is the Imageview v Jack , its much better than the Hurstanger case.

 

I settled 3 cases on secret commissions this week, its not as easy as the lenders are getting wise to the arguments, even welcome are fighting them.

 

Devils advocate

[pt2537]

What is crucial, is that we avoid a one size fits all approach,

 

In comms cases, you must apply the "law" to the "facts " of the indivisual case.

 

I do have a checklist somewhere which a QC gave me recently, on commissions, i will see if i can copy and paste it here.

 

Im not sure it may well be copy righted

[pt2537]

steven could you shed some light on this hidden commisions thing,or even give me a few links where i can read for myself as to how this could make the agreement unenforceable,

http://www.bailii.org/ew/cases/EWCA/Civ/2009/63.html

 

The Hurstanger case introduced the so called Halfway house with disclosure vs partial disclosure and settled the remedies available for such.

 

If you wish to know about the mechanics, then i would suggest that the above case i posted is far more explanatory for lay persons and practitioners alike. It sets out the law on secret comms clearly.

 

I hope this helps

[pt2537]

the two points i would put forward is

 

1) if there is an "agent" are you paying them for acting as such? so are you giving them say £200 to go find you the best deal or

 

2) are you simply asking a lender to provide you a service? where you pay t hem nothing but simply borrow funds to finance the transaction?

 

I would also suggest establishing a fiduciary due is owe, or the duty of utmost good faith, before you go hell bent on finding a secret commission

 

oh and while im thinking about it, the Agent in credit sales transactions , such as a car dealer supplying credit, is under normal circumstances the Agent of the lender NOT the agent of the borrower, therefore owes no fiduciary duty to hte borrower

 

id be happy for someone to prove me wrong, but Bowstead and chitty seem to agree with me

[pt2537]

Prudence

 

 

 

In the meantime you (and everyone else) might be interested in this - http://www.journalism.co.uk/66/articles/539539.php

I have the aforesaid case, and have also been supplied a number of very helpful (NON Reported) cases which i am fortunate to have, which would assist a number of peeps,

 

I cannot upload them, nor can i pm them sadly, but if i can assist anyone with cases concerning PPI misselling which equals unenforceability, and also fatal unenforceability for breach of prescribed terms then let me know

[Peterbard]

the two points i would put forward is

 

1) if there is an "agent" are you paying them for acting as such? so are you giving them say £200 to go find you the best deal or

 

2) are you simply asking a lender to provide you a service? where you pay t hem nothing but simply borrow funds to finance the transaction?

 

I would also suggest establishing a fiduciary due is owe, or the duty of utmost good faith, before you go hell bent on finding a secret commission

 

oh and while im thinking about it, the Agent in credit sales transactions , such as a car dealer supplying credit, is under normal circumstances the Agent of the lender NOT the agent of the borrower, therefore owes no fiduciary duty to hte borrower

 

id be happy for someone to prove me wrong, but Bowstead and chitty seem to agree with me

Hi

Not quite getting this my fault I am sure, if there is no fiducially duty between agent and debtor, then what is the cause of breach, when so called secret commission is paid?

Peter

[pt2537]

a) If the agent really is acting solely as agent of the lender, then he will owe no fiduciary duty to the borrower and so no question of a secret profit will arise.

b) The particulars of the individual agency relationship will need to be examined to determine whether the agent really was acting for the lender as opposed to the borrower.

[steven4064]

In my friend's case, Welcome sold the insurance which was a product of Norwich Union. They pushed the sale and used all sorts of moral blackmail to sell three policies totalling almost a thrid of the total loan. The underwriting sheet shows what they paid NU and what they charged my friend. This latter figure agrees exactly with what is on the agreement and is 142% greater than what they paid NU. There is nothing on any of the documents to show that Welcome made anyprofit out of the deal.

 

Of course there is also the s61 CCA 1974 considreation. The profit Welcome paid themselves should be part of the TCC not part of the loan. Therefore loan mount, TCC and APR are all wrong making the agreement unenforceable.

[Peterbard]

a) If the agent really is acting solely as agent of the lender, then he will owe no fiduciary duty to the borrower and so no question of a secret profit will arise.

b) The particulars of the individual agency relationship will need to be examined to determine whether the agent really was acting for the lender as opposed to the borrower.

 

Hi

I am sure you are right it is not really somerthng i have given a great deal of thought to but how can the agent act soley for the lender? surely the nature of the relationship requires the agent to act for both the lender and the debtor otherwise what would he do?

 

Peter

Edited August 22, 2010 by Dodgeball
spelling

[Peterbard]

Hi

I am sure you are right it is not really somerthng i have given a great deal of thought to but how can the agent act soley for the lender? surely the nature of the relationship requires the agent to act for both the lender and the debtor otherwise what would he do?

 

Peter

Hi

 

I have done a bit of reading and now know exactlhy what you mean, fascinating subject i shall read more.

 

Peter

[pt2537]

1. The position in respect of fully secret commissions is as follows:

a) The broker is generally to be classed as the agent of the borrower. He will thus be subject to fiduciary duties which require him to act in the best interests of the borrower as opposed to the best interests of himself and/or the lender.

b) A broker who arranges to receive a secret commission from a lender in return for procuring the borrower’s entry into a contract with the lender acts in breach of his fiduciary duties. The secret payment will be treated as being akin to a bribe. It does not matter that there was no criminal motive, or active concealment of the payment.

c) The secret commission will, in law, be held on trust for the borrower by the broker. The money will belong to the borrower. He can recover it (plus interest) in a proprietary claim against the agent.

d) The borrower may, as an alternative, sue the lender to recover the amount of the bribe in an action based upon the law of restitution. The precise nature of such a claim is unclear, although it is thought to be a claim in personam (in contrast with the proprietary claim against the agent)[/url]

e) The broker will also be liable to forfeit any fee which the borrower may have agreed to pay him. Thus, he will in effect lose the payment he has received from both parties to the transaction. Again, interest could be claimed on any fee paid by the borrower to the agent.

f) The borrower will also have the option of avoiding the contract with the lender (who will be taken as being complicit in the bribe and jointly and severally liable as a result). If the contract is avoided, the borrower will be entitled to reclaim any sums paid to the lender, but he will have to make counter-restitution of any benefits received from the lender. He will not, however, have to give credit for the secret payment, which he can retain as a ‘gift to himself’

g) If a PPI policy is valueless to a particular borrower (where, for example, he would not qualify as a beneficiary and so could not claim), he will have received no consideration for his premium payments. This should lead to a return of all premiums paid without any need to make counter-restitution (on the basis that there would be nothing to restore).

h) The borrower will also be entitled to recover from the agent and/or third party any losses that he has sustained as a result of entering into the avoided transaction. Whether or not such losses exist would depend upon the facts of each particular case.

i) The above principles must be read subject to the proviso that a borrower who does not pay the agent a fee cannot generally complain when his agent looks for payment elsewhere. The principal must allow that his agent is likely to receive such payment as would be usual and customary in the marketplace. That said, paragraph 37 of Hurstanger suggests that this rule may not be applied in situations where vulnerable consumers are exposed to agents operating in the non-status lending markets.

2. The position in relation to partially secret commissions following on from Hurstanger is as follows:

a) In order to escape any criticism over a payment made to an agent, the agent and lender need to ensure that the borrower gives fully informed consent to the agent’s receipt of the benefit.

b) Partial disclosure along the lines of, ‘we inform you that in some circumstances we may pay a commission to the broker’ creates a half-way house, where enough has been done to negate secrecy, but not enough has been done to obtain fully informed consent.

c) Where there is such a half-way house situation, the borrower may not deploy the full arsenal of weapons available in the case of a fully secret commission. His remedies are purely equitable and subject to the court’s discretion

d) The court will thus order whatever seems equitable as between the parties. In Hurstanger, this meant that the Claimant was refused rescission but permitted to recover the commission paid by the lender plus interest at the contractual rate of 1.29% per month.

 

 

 

 

That is from an advice from the counsel who did the case i mentioned above

[pt2537]

Hi

 

I have done a bit of reading and now know exactlhy what you mean, fascinating subject i shall read more.

 

Peter

if its reading your doing, then Bowstead and Reynolds on agency and Chitty on contract is helpful.

 

Halsburys Agency is also helpful, but the best case i know of for explaining the legal position is Imageview and Jack

[frettful38]

Hi PT,

 

I received this letter from Blemain Finance Ltd when I requested information if they paid my broker Ocean Finance Ltd a commission.

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/barristers%20advice/downloads/blemainresponsetosolicitor.jpg

 

Blemain have said that I have to prove I was owed a fiduciary duty and prove if it was breached. I contacted Ocean Finance Ltd to arrange a loan and they found Blemain Finance Ltd. I knew that I had to pay OF a fee [broker fee] but was not informed at point of sale by BF or OF that OF were to receive a commission on top of this fee.

 

BF have partially disclosed this info in their terms and conditions that the lender will usually pay the broker a commission for introducing the borrower to the lender.

 

I do not know for certain where that leaves me. Am I entitled to have this fee refunded. Since all this I now have it in writing from OF and BF that a commission was paid by BF to OF.......and OF have confirmed that they did received a commission.

 

Would this be partial disclosure and if so where does that leave me and what if any are my options?

 

I look forward to your reply. Thank you.

[frettful38]

the two points i would put forward is

 

1) if there is an "agent" are you paying them for acting as such? so are you giving them say £200 to go find you the best deal or

 

2) are you simply asking a lender to provide you a service? where you pay t hem nothing but simply borrow funds to finance the transaction?

 

I would also suggest establishing a fiduciary due is owe, or the duty of utmost good faith, before you go hell bent on finding a secret commission

 

oh and while im thinking about it, the Agent in credit sales transactions , such as a car dealer supplying credit, is under normal circumstances the Agent of the lender NOT the agent of the borrower, therefore owes no fiduciary duty to hte borrower

 

id be happy for someone to prove me wrong, but Bowstead and chitty seem to agree with me

 

 

I think that my case would fall under the Hurstanger case and that I would be only entitled to receive the commission plus interest back?

 

Would you agree PT?

[edwi69]

Cattles Cease Restructuring Talks With Bondholders; To Continue ...

[edwi69]

Some Cattles Bondholder Creditors Exit Restructuring Talks

[Billy goat gruff]

Interesting development tho it will be a while if at all before they fold completely won`t it? I doubt in any eventuality that we will see our loans vapourised (would be nice if Im wrong).

[steven4064]

I don't think anyone will see their loans vapourise - cattles will sell them to get some bail-out money, I'm afraid

[edwi69]

Cattles gets knock back on survival deal